Hamid and Secretary, Department of Social Services (Social services second review)

[2017] AATA 837

Hamid and Secretary, Department of Social Services (Social services second review) [2017] AATA 837 (14 June 2017)

Division:General Division

File Number(s):      2016/4138

Re:Ghossayba Hamid

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 June 2017

Place:Sydney

The decision under review is set aside and remitted for redetermination with the finding that Mrs Hamid was not a member of a couple and was separated under one roof from 28 January 2015.

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Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether a member of a couple – whether separated under the one roof – s4 Social Security Act 1991 (Cth) – financial aspects – nature of household – social aspects – nature of commitment – lack of family support – decision set aside

LEGISLATION

Social Security Act 1991 (Cth) s4

CASES

Boskoski v Secretary, Department of Social Services [2014] AATA 915

Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Pelka v Secretary, Department Family Community Services (2006) 151 FCR 546

REASONS FOR DECISION

Senior Member A Poljak

14 June 2017

1. Mrs Hamid (“the applicant”) married Mr Hamid in 1993. They have five children together and have lived together in a property in Auburn for over 15 years. The applicant is in receipt of the disability support pension (“DSP”).

2. On 23 December 2014, the applicant completed and returned the form ‘Relationship Details – Separated under One Roof’ to the Department of Human Services (“the Department”).

3. On 28 January 2015, the Department completed a member of the couple assessment and determined that the applicant should be treated as a member of a couple and not separated under one roof. The applicant’s DSP was paid at the partnered rate from this date (“the relevant date”). On 18 March 2015, a Centerlink Review officer (“ARO”) affirmed this decision of the Department.

4. On 16 February 2016, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) affirmed the decision of the ARO and found that the applicant was a member of a couple with Mr Hamid and that her DSP should be assessed on that basis (“the decision under review”). The applicant seeks review of this decision.

5. The issues to be determined in these proceedings are:

   ·Whether the applicant was a member of a couple; and

   ·If so, whether there is a special reason why the applicant should not be treated as a member of a couple.

   RELEVANT LEGISLATIVE PROVISIONS

6. Section 4 of the Social Security Act 1991 (Cth) (“the Act’) provides that a person is a member of a couple for the purposes of the Act if the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection 4(3)), living separately and apart from the other person on a permanent or indefinite basis. “Partner” is defined to mean in relation to a person who is a member of a couple, and means the other member of the couple. The term “member of a couple” has the meaning given by subsections 4(2), 4(3), 4(3A), 4(6) and 4(6A).

7. Relevantly, in forming an opinion about the relationship between two people, the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters, pursuant to section 4(3) of the Act:

   (a) the financial aspects of the relationship, including:

   (i)     any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)    any significant pooling of financial resources especially in relation to major financial commitments; and

   (iii)    any legal obligations owed by one person in respect of the other person; and

   (iv)   the basis of any sharing of day‑to‑day household expenses;

   (b)the nature of the household, including:

   (i)     any joint responsibility for providing care or support of children; and

   (ii)    the living arrangements of the people; and

   (iii)    the basis on which responsibility for housework is distributed;

   (c)the social aspects of the relationship, including:

   (i)     whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

   (ii)    the assessment of friends and regular associates of the people about the nature of their relationship; and

   (iii)    the basis on which the people make plans for, or engage in, joint social activities;

   (d)any sexual relationship between the people;

   (e)the nature of the people’s commitment to each other, including:

   (i)     the length of the relationship; and

   (ii)    the nature of any companionship and emotional support that the people provide to each other; and

   (iii)    whether the people consider that the relationship is likely to continue indefinitely; and

   (iv)   whether the people see their relationship as a marriage‑like relationship or a de facto relationship.

8. When deciding whether or not a person is in a relationship, I must have regard to the interpersonal relationship as a whole, not limited by the factors listed in s 4(3). The decision-maker must specifically consider the “total picture of the relationship created by all of those factors”; Pelka v Secretary, Department Family Community Services (2006) 151 FCR 546.

9. Whilst all aspects of the relationship must be considered, differently structured relationships may satisfy different criteria set out in subsection 4(3).  As the Tribunal observed in Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789 at [16]:

   …People must be free to structure their domestic relationships as they please.  But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address.  The criteria offer common-sense indicators.  One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view that the applicant is in fact a member of a couple.

10. Deputy President J Constance said in Boskoski v Secretary, Department of Social Services [2014] AATA 915 at [63] that “In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts.  However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other”.

    THE APPLICANT’S RELATIONSHIP STATUS

    Financial Aspects

11. Mr Hamid holds the legal title of the family home. However, this may not be a reflection of Mrs Hamid’s legal interest in the property. At hearing Mrs Hamid said that she wasn’t sure if under Australian law the house was part hers, but in Islam, the “rule” is that the house belonged to her husband.

12. Mrs Hamid advised at hearing that prior to Mr Hamid having a number of strokes towards the end of 2014; he was very controlling and never allowed her to manage their finances. She said that they now have separate bank accounts and Mr Hamid does not provide her with any money. They have one car between them. It is mainly used by their daughter who drives them both to the shops and appointments as needed. Mrs Hamid advised that she pays half of the household bills for the telephone, electricity and food. Neither has access to each other’s bank accounts. This is corroborated by the answers given by Mrs Hamid in the form ‘Relationship Details – Separated under One Roof’ completed on 23 December 2014.

13. Currently 3 of their 5 children reside in the family home. Mrs Hamid said that Mr Hamid occasionally gives the children money for clothes and incidentals when asked.

14. The only significant asset of the marriage is the family home, which is in Mr Hamid’s name. As already noted, this may not however be representative of Mrs Hamid legal interest in the property. While there is limited objective evidence, I accept Mrs Hamid’s evidence that they share household expenses equally and manage their finances separately. Mr Hamid may occasionally provide extra money to his children for incidental expenses but I am not convinced that this represents co-operation with Mrs Hamid. I find that overall the financial arrangements are indicative that Mr and Mrs Hamid are not members of a couple and are separated under the one roof.

    Nature of household

15. The applicant claims that she is separated from Mr Hamid despite living under the one roof together. She advised at hearing that Mr Hamid sleeps in a granny flat attached to the family home and looks after himself with the assistance of their daughter, who is his primary carer. Mr Hamid’s evidence before the SSCSD was that he couldn’t afford to move out of the family home and pay private rent.

16. The evidence before the SSCSD was that Mr Hamid suffered numerous strokes in late 2014 and was in and out of hospital for many months. Mrs Hamid “visited him in hospital each day with food and cleaned his room”. During these proceedings, Mrs Hamid advised that when he came home from hospital she helped him shower and use the bathroom for a period of time. She said that she only helped him with bathing and toileting out of necessity. Her daughter was Mr Hamid’s primary career but she didn’t want her to see her father naked; she felt that her daughter attending to that aspect of Mr Hamid’s care was inappropriate.

17. Currently, her daughter does the majority of the housework and is Mr Hamid’s primary carer.

18. Mrs Hamid says that she cooks for herself and her children but Mr Hamid sometimes eats what she has prepared. She doesn’t seem to take much issue with this because she feels sorry for Mr Hamid because he is “very old and weak”. Despite this, Mrs Hamid said that “she looks after her stuff” and Mr Hamid “looks after his stuff”. Having regard to the living arrangements and the nature of the household, I find that overall they are suggestive that Mr and Mrs Hamid are not members of a couple and separated under one roof.

    Social Aspects

19. Mr and Mrs Hamid do not have any joint friends. Mrs Hamid described a lack of friends or social support and described Mr Hamid as very controlling. She advised that she was not allowed to talk to other people or neighbours. Mrs Hamid said she does not socialise with Mr Hamid at all and has nothing to do with his family. She said Mr Hamid does not go with her to pray and did nothing for their daughter’s wedding.

20. It appears that the only time they go out together is to attend doctor’s appointments. However this seems to be a mere consequence of them having only one car between them. Mrs Hamid advised that her daughter drives them both to their appointments and to the shops at the same time. She said that both their names were still on the same Medicare card because her daughter, who is Mr Hamid’s primary career, uses it when she takes them both to their medical appointments. In any event, she advised that she has requested a separate Medicare card for herself but is still waiting to receive it.

21. Despite what is recorded in the form ‘Relationship Details – Separated under One Roof’, which was completed on 23 December 2014, Mrs Hamid’s evidence at hearing was that her children and family are now aware that she is separated from Mr Hamid. She says she is telling everyone now because she is no longer ashamed. Mrs Hamid has provided two letters in support, namely:

    ·A letter from Dr Raouf Selim dated 10 November 2016, who certifies that Mrs Hamid was separated from Mr Hamid, under the same roof, for the past two years; and

    ·The letter of Suhad Purais, who advises that she has known Mrs Hamid for a long time and says “I know she is separate with her partner in the same property since 2014”. 

22. Having considered the social aspects of the relationship I am satisfied that they establish that Mr and Mrs Hamid were not members of a couple and separated under the one roof.

    Sexual relationship

23. It does not appear to be in dispute that there has been no sexual relationship between Mrs and Mr Hamid since about the end of 2013.

    Nature of commitment

24. Mrs Hamid is legally married to Mr Hamid.

25. Mrs Hamid’s evidence before the SSCSD was that she has been unhappy in her marriage for many years. She said she was frustrated over renovations to the family home which were taking a long time and she was not allowed to make any decisions. She gave evidence about times when Mr Hamid had struck her and that a few days before his stoke in late 2014, Mr Hamid struck her and she required hospitalisation.

26. Mr Hamid’s evidence before the SSCSD was that he “disagreed on the separation and thought it was a joke”.

27. In February 2014, Mrs Hamid says she left the family home. She slept in the car for two nights and only returned to the family home because she had “nowhere to go”. Mrs Hamid said at hearing that Mr Hamid treated her “like a slave”. She says that she does everything herself and has been treated very badly. She said the only reason that she stayed in the relationship for so long was for the sake of her children and because “she had no place to go”. She said that because her husband was so controlling she had no friends and no family to help her, and up until the end of 2014, she had no control over her finances.

28. Mrs Hamid advised that she has applied for housing commission but she is still on a waiting list. She has no idea how long it will take before she will be offered housing. In the meantime she intends to remain in the family home because she has nowhere else to go. Mrs Hamid said that she would also like to seek further assistance from a family lawyer to help her legally separate from Mr Hamid, but at this stage she cannot afford it.

29. While there is very limited objective evidence before me, I am satisfied that Mrs Hamid has a strong desire and an intention to live separately from Mr Hamid as soon as she is able. At hearing she struck me as a truthful woman who was seeking independence from her husband and was speaking openly about the abuse she had suffered. I acknowledge that Mr Hamid was not present at hearing to give evidence or refute claims made by Mrs Hamid in regards to the nature of their relationship, despite this; I am convinced that Mrs Hamid is not committed to the marriage.

    DECISION

30. Having regard to the interpersonal relationship as a whole, and the factors listed in s 4(3) of the Act, I am satisfied that Mrs Hamid and Mr Hamid are not members of a couple.

31. The decision under review is set aside and remitted for re-determination with the finding that Mrs Hamid was not a member of a couple and was separated under one roof from 28 January 2015.

I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 14 June 2017

Date(s) of hearing:	7 April 2017
Applicant:	In person
Counsel for the Respondent:	Andrew Lones, Department of Human Services